Before we answer that question, let’s be clear about a few of things: For reasons too numerous to mention, we do not condone calling anyone an MF. If you do that at work, or anywhere for that matter, it will likely have adverse consequences of one kind or another. Further, this article is not a primer on how to m-f your boss and keep your job. The idea, instead, is to show Ohio employers and employees alike how to avoid these types of situations. Also, the law views these situations differently depending on a number of factors including, whether the events happened in the workplace during working hours, outside the workplace or outside of actual work hours or on social media–as is the case here. Finally, many employers are subject to federal as well as Ohio labor laws even if they do not have a union or a union organizing drive in progress.
And the answer is. . . if you’re Mr. Perez and your employer is Pier Sixty, LLC or one that treats it employees like Pier Sixty, under certain circumstances, you can get your job back along with back pay among other remedies.The fundamental principles governing circumstances like those in Pier Sixty are: (1) an employee has a right under federal labor law to organize, form, join or assist labor organizations, to bargain collectively and <strong style=”line-height: 1.5;”>to engage in other concerted activities for the purpose </strong> of collective bargaining or other mutual aid or protection; and (2) an employer cannot interfere with, retrain or coerce employees from exercising these rights. These principles collided when two days before a union representation election, Hernan Perez, frustrated about his constant mistreatment at the hands of his bosses at Pier Sixty, LLC, vented in a post on his Facebook page during a break at work: “Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Bob, of course, was Perez’s boss. Pier Sixty fired Perez stating that his comments violated company policy. However, the company would not identify the specific policy that he violated. The NLRB considered nine factors in its examination of the “totality of the circumstances” and almost three-and-a-half years after his termination, the Board concluded that Perez was improperly discharged for posting his protected, concerted comments on social media. Among the remedies the Board ordered were that Perez be immediately reinstated to his job or a similar position, if his previous job no longer existed, with back pay (paid in a lump sum) and interest. Further, the Board ordered Pier Sixty to compensate Perez for any adverse tax consequences arising from the lump sum payment. I recommend that employers in North East Ohio and elsewhere not dismiss this case as an outlier. Instead, learn from it. The Board’s analysis of Pier Sixty’s actions provides employers with a checklist of how not to conduct employee relations in general as well as how not to handle this particular kind of situation. Prior to Perez’s post, Pier Sixty committed numerous unfair labor practices leading up to the election, including issuing a “no talk” rule to prevent employees from discussing the union. Even though the employees had long complained to management about being treated in a hostile and degrading manner, the company did little, if anything, to change the work environment. And on the night Perez posted his comments, his supervisor had continued his disrespectful treatment of Perez and other employees. Perez reacted impulsively rather than deliberately according to the NLRB and his post did not interrupt Pier Sixty’s workplace or its relationship with its customers. Significantly, as it turned out Perez’s profanity did not differ from that used by members of management and directed at the employees; nor was it different from profanity that management regularly tolerated in the workplace. In the few instances when employees had been disciplined for using obscene language, none had been discharged. Here are my takeaways from this case for Ohio employers: (1) Treat employees with respect; (2) Listen to employees’ complaints and investigate; (3) Be proactive–Train management and non-management employees on company policies and expected conduct; (4) Enforce workplace rules consistently; (5) Avoid selective enforcement; (6) Avoid favoritism; (7) Don’t make rules you can’t or won’t enforce; and (8) Don’t react based on anger or in retaliation. And for employees in North East Ohio, do not read this case as creating a blanket rule that profanity towards management is permissible. As explained above, it is a complicated analysis and most employees are not likely to get their jobs back after cussing out the boss. Keep in mind that even though the NLRB ordered Pier Sixty to reinstate Hernan Perez with back pay, among other remedies, it took nearly three-and-a-half years from the date he was fired for the Board to order his reinstatement. If you are treated like Mr. Perez in the workplace, instead of m-fing the boss, keep an up-to-date record of the incidents, complain to management/human resources about the mistreatment, and if conditions do not improve or if they get worse, review your situation with an employment attorney to see what options you may have.